The European Union Law Issues - Essay Example

?European Union law Table of Contents Question 3 Question 2 7 References 14 Question In accordance with the European Union (EU) Commission legislatives, discrimination in terms of employee remuneration or pay on the basis of gender, nationality, religion, disability, age, culture and origins is termed as unethical business practices and therefore is considered to be illegal. Discrimination as well as equality is directed by the major guidelines of the EU law where the employees should receive ‘no less favourable treatment’. The EU has been developed with the sole intention to minimize the conflicts regarding discrimination as well as principles for promoting the ‘equal treatment’ for the workers who are engaged with the various levels of hierarchies in a business organization. Initially, EU member states concentrate upon the discrimination on the basis of two respects as described by the EU law. Firstly, the economic objectives of EU commission is to create a common employment market with the help of equal treatment of the workers which are required to prohibit discrimination on the basis of nationality under the Article 45 Treaty on the Functioning of the European Union (TFEU). Secondly, the workers who belong from an EU nation should not be treated differently in the job market of any other EU nations on the basis of gender differences restricting discrimination practice based on sex1. Taking into consideration the ethical practices and the requirement of equal treatment of employees, the general guidelines of non-discrimination was implemented through the EU legislative emphasising on gender discrimination concerning the equal pay policies for both men and women under the Article 157 of the TFEU which was formerly attributed as Article 119 of the European Commission (EC). The ‘pay gap’ between both the genders is regarded as applicable in every member state of EU according to the EU law. On the basis of the implications of ‘pay gap’, the EU legislation promotes equal pay in order to evaluate the gap between the income levels of both the genders whose pay structure is quite higher. Contextually, the employment segmentation on the basis of gender implies that in many employment workplaces, the male employees predominantly occupied the labour market within the EU member states. In the context of equal pay, the aforementioned aspect was applicable when the discrimination principle of the EU law was further extended to facilitate the equal pay of workers. Moreover, on the basis of the case law of European Court of Justice (ECJ), it can be affirmed that the general guidelines regarding the equal payment for both female as well as male employees rendered due consideration towards social objectives of growth and overall development. Discrimination of gender within the employment takes place when an employee obtains special treatments on the basis of various arbitrary criteria such as gender, religion, age, parental status, socio-economic background, race and political opinion. It is worth mentioning in this context that the notion, ‘discrimination’, was initiated within EU discourse in the form of restriction under the Article 18 TFEU. As per the EU commission, ‘Council Directive 75/117/EEC’ implemented policies obstructing gender discrimination affirming that there should be the equal pay for both men and women. Furthermore, Council Directive 76/207/EEC also executed certain guidelines regarding equal treatment for both the genders on the basis of extra pay, promotion, training and working situations2. In present business context, it has been observed that most of the working women in EU member states have to face ‘deep-rooted’ injustice within their workplace, compromising with lesser payment compared to their male colleagues irrespective of their similar job responsibilities. Hence, equal treatment among the men and women workers have emerged as one of the significant aspects within the EU member states. It is in this context that the Article 157 of TFEU and the Directive 2006/54/EC demonstrates a legal construction regarding the EU’s gender equality law based on equal pay and equal treatment within the workplace. Directive 2006/54/ EC is kind of evaluation comprising certain regulations which are directly related with a few of the significant principles concentrating upon the equal treatment of employees within the workplace irrespective of their dissimilarities and equal pay on the basis of identical job responsibilities. With this concern, Article 157 of the TFEU implies that both men as well as women workers should get equally compensated on the basis of the working conditions and their job responsibilities. Hereby, Article 157 of the TFEU not only restricts direct gender discrimination in terms of pay but also prohibits indirect discrimination in terms of differing growth opportunities as well as compensation rendered by the employer to its employees. It is worth mentioning in this regard that direct discrimination in employment takes place when an individual is treated less favourably on the basis of his or her gender in the workplace. On the other hand, indirect discrimination refers to those practices which do not directly segregate one employee from another but influences such discriminatory practices. Contextually, the articles enacted by the EU law defines that only when a particular organisational act tends to compensate its employees with unequal pay structures based on their gender diversity, irrespective of their job responsibilities being similar, it can be noted as the occurrence of gender discrimination. In other words, unequal pay on the basis of unequal job responsibilities cannot be referred as a practice of gender discrimination3. This particular aspect can be apparently witnessed in relation to the case of Kate. By taking into concern the case of Kate, it can be observed that she was a full time employee in the personnel department of a local departmental store where most of her peer employees were females. Consequently, she noticed that her salary was comparatively less than the employees of the marketing department. In this regard, Article 157 of the TFEU affirms that the pay should be equal if the employees need to perform similar kind of job responsibilities within the same workplace. However, from the case study it can be observed that Kate was working in a personnel department which comprised different job responsibilities from that practiced by the male employees in the marketing department. Therefore, claim which has been put forward by Kate regarding the equal payment on the basis of gender discrimination in not relevant in this case. Contextually, as per the different responsibilities of job, it is not possible for Kate to file a complaint registering against gender discrimination practiced by the company4. Accordingly, in the case of Sharon, it can be observed that she is working as a part-time employee in the marketing department where she observed that the organisation was not discouraging her plea for sick pay under the organisational policies which states that only full-time workers are liable for such pays. According to the aforementioned circumstances this case cannot be treated as a practice of gender discrimination as per the Article 157 of the TFEU owing to the fact that Sharon was discriminated from obtaining equal treatment not on the basis of gender diversity but on the basis of employment terms. Therefore in this case, Sharon can file a complaint against the company on the basis of human rights discrimination rather than on the basis of gender discrimination for equal treatment5. Unlike the above two cases, in the case of Tina, the practice of gender discrimination is apparent. According to the case scenario, it can be observed that Tina had applied for a job in the personnel department of a company. In correspondence to which, Tina was told by the management that she was an eligible applicant for this job. However, she was later informed that the company has already accommodated a male candidate named Alan for the job position in order to maintain gender balance within the department. According to the Article 157 of the TFEU, this case can be illustrated as directly related with the practice of gender discrimination. On the basis of the implications of this article, a company should maintain equal treatment between male and female workers concerning employment market opportunities. With similar concerns, the European Court of Justice (ECJ) applied certain provisions in order to uphold standard equal treatments between male and female employees within the business organization. Hence, by taking into concern, the case of Tina it can be treated as an infringement of equal treatment. Therefore, Tina can take requisite legal actions against the company for not maintaining appropriate equal opportunities as well as treatments as per the Article 157 of the TFEU6. Question 2 EU law is considered as a legislation which intends to directly as well as indirectly obtain control upon the operations of EU member states. There are three sources of EU law which can be identified as primary, secondary and supplementary laws. Contextually, the major sources of primary law are identified in terms of the Treaties establishing the European Union (TEU). The sources of secondary law are considered as legal instruments which are directly based on treaties, regulations, agreements and conventions based on the operations of the EU member states. Supplementary law is referred to those sources which are not delivered by the TEU. These sources are (1) case law, which is controlled by the Court of Justice of European Union, (2) international law, and (3) the general guidelines of the EU law. The EU legislature is generally collaborated by the European Parliament and the Council of European Union. In this similar context, international law is affirmed as a kind of inspiration source that arises from the ECJ while establishing its laws regarding the cases in concern. Contextually, general principles are considered as unwritten sources which are established by the case law of ECJ7. It is in this context that Article 101 (1) was established by the TFEU which is also considered as ex-Article 81 (1) enacted under Treaty Establishing the European Community (TEC). This particular article attempts to discourage all actions related to undertakings between two or more EU countries. The exception of this rule under Article 101 (3) of the TFEU, which is the ex-Article 81 (3) of the TEC, affirms that if the prohibitions mentioned in Article 101 (1) of the TFEU describes any inappropriateness regarding legal alliances which further contributes towards the improvement of distribution as well as production of goods and/or services, endorsing economic or technical improvements while facilitating the customers with benefits obtainable from these aspects. This article also imposes certain legal restrictions which are not necessary about the attainment of these aforementioned objectives8. The appraisal enacted under Article 101 of TFEU consists of two steps. First step implies that the evaluation of legal alliances concerned with undertakings, i.e. the ability of effecting businesses between EU nations, principally comprises anti-competitive objectives or possibilities of anti-competitive affects which needs to be discouraged for the overall industrial growth of the member states. Article 101(3) can only be reliable when legal alliances with the motive of undertakings are found to discourage competition in relevance with the Article 101(1) of the TFEU. It is worth mentioning in this regard that the EU commission principles are entirely based on vertical provisions, ‘horizontal cooperation agreements’ and ‘technology transfer agreements’ which comprise substantial guidelines on the basis of the Article 101(3) of TFEU9. In second step of this article is affirmed as reliable only when an agreement is established or proved to be anti-competitive in nature. This agreement also helps to determine the pro-competitive advantages which are produced by other agreements under the same article. Moreover, in this step, it also evaluates whether these pro-competitive effects are considerably more severe than the effects of anti-competitive agreements. According to the present guidelines, it has been observed that there are four clauses of Article 101(3) of TFEU. These four clauses are ‘competence gains’, ‘fair share for consumers’, ‘continuation period of the restrictions’ and ‘no abolition of competition’10. These aforementioned four clauses are signified as essential factors when scrutinizing whether all these clauses are competitively satisfied by the EU nations. Furthermore, the primary purposes of EU general guidelines is often considered to reverse the order of the second and third clauses, i.e. ‘fair share for consumers’, ‘continuation period of the restrictions’, in order to deal with the issues of indispensability before it is ‘passed-on’ to the community. The analysis of the process to ‘pass-on’ the clauses to the community requires maintaining equilibrium between the positive and negative impacts created upon the customers through the agreements11. Power of the EU Commission In order to make sure that the policies regarding competition considered agreements, various policy measures concerning the decision making regarding undertakings, and accordingly, few relevant restrictive practices have been enacted by the Article 101 of TFEU. Contextually, the EU commission exercises certain degree of power when deciding upon the violation of the Article 101 of TFEU. Under the Article 101 of TFEU, which is also referred as ex-Article 81 of TEC, the EU commission will be able to take the following decisions if required12. Decision regarding findings and termination of infringement: If the EU commission notices that there is a violation of the Article 101 TFEU, they may take the decision against undertakings facilitated through the agreement as well as against the association of undertakings concerning what should be emerged at an end. Decision about interim initiatives: If a case of ECJ needs emergency justification, in such cases, the EU commission holds to power to take initiatives according to their policy enactments for the interim evaluation of infringement with the intention to ensure justice with minimised risks of conflicts. Decision making about the commitments of obligation: In this context, the EU commission holds the power to take necessary decisions in order to mitigate the infringement by undertakings along with rendering a commitment to impose certain obligations upon the nations who are identified to practice agreements violating the principles of Article 101 of TFEU. These obligations are specified for certain time period when it may be revised. This facilitates better judgement, if the content of the cases are changed, the undertaking policies and the decisions of the EU commission are quite likely to remain incomplete, delivering misleading information. Decision making concerning the applicability of Article 101 TFEU: By taking into consideration EU public interests, EU commission may take the decision on the basis of facts concerning that principles of Article 101 of TFEU is not appropriately applicable for an agreement13. As per the general guidelines of the EU commission, undertakings policy should form an agreement which is developed either by a ‘Concerted Practice’ or by the association of undertakings. On the basis of the implications related to Article 101 of the TFEU, Advocate General Reischl opined that it is not necessary to differentiate an agreement from a ‘Concerted Practice’ owing to the fact that they are acted on the same convenient labels. Contextually, Article 101 of the TFEU can be observed to consider an action as illegal when an agreement is found to act as collusion in front of the both parties, either verbally or in-verbally. Contextually, such agreements include both horizontal as well as vertical dimensions. A horizontal agreement is signed by the retailers of the two nations; whereas a vertical agreement is made between the retailers and the suppliers of the two or more nations. Furthermore, Article 101 of TFEU has been established quite widely by taking into concern both informal agreements as well as ‘Concerted Practices’ where the organizations of the two nations attempt to minimise or raise the price of the similar tangible goods which creates a negative impact on the competitive environment augmenting a monopolistic structure within the industrial context. However, unpredictable increases in price cannot be considered as ‘Concerted Practices’ by itself. In this regard, legal evidences, advocating that the parties bind with an agreement were not aware about the alterations of the prices, needs to be presented to the EU commission to prove it a ‘concerted practice’. As per the implications of the principles of EU law, concerted practices are not a subjective matter being irrespective of agreements. If an agreement under the Article 101 of TFEU is considered as a concerted practice, the meagre anti-competitive effects become enough to prove it illegal, even if either of the parties or both the parties are unaware about the market operations or did not anticipate that this type of effects are going to take place14;15. References Burri, S. & Prechal, S., 2010. EU Gender Equality Law. European Commission. [Online] Available at: http://ec.europa.eu/justice/gender-equality/files/dgjustice_eugenderequalitylaw_update_2010_final24february2011_en.pdf [Accessed December 05, 2012]. European Union, 2010. Sources of European Union law. Summaries of EU Legislation. [Online] Available at: http://europa.eu/legislation_summaries/institutional_affairs/decisionmaking_process/l14534_en.htm [Accessed December 05, 2012]. European Union, 2011. Application of Articles 101 and 102 TFEU (formerly Articles 81 and 82 of the EC Treaty). Summaries of EU Legislation. [Online] Available at: http://europa.eu/legislation_summaries/competition/firms/l26092_en.htm [Accessed December 05, 2012]. European Union, 2011. EU Competition Law Rules Applicable to Antitrust Enforcement. Competition Handbooks. [Online] Available at: http://ec.europa.eu/competition/antitrust/legislation/handbook_vol_1.pdf [Accessed January 05, 2013]. European Commission, 2011. Notices from European Union Institutions, Bodies, Offices and Agencies. Official Journal of the European Union, Vol. 4, No. 11, pp. 1-66. European Union, 2011. Discrimination and Equality in Employment. European Industrial Relations Dictionary. [Online] Available at: http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/dictionary7.htm [Accessed January 05, 2013]. European Union, 2011. Discrimination. European Industrial Relations Dictionary. [Online] Available at: http://www.eurofound.europa.eu/areas/industrialrelations/dictionary/definitions/DISCRIMINATION.htm [Accessed January 05, 2013]. 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